United States of America v. Daniel Klubock

culpatory evidence him a denied fair trial. tunity to use Kolben’s memorandum effec- The evidence at issue is a memorandum tively. by Special

written Agent Kolben in which For the discussed, reasons the judgment he states that Carbone had notified defend- the district affirmed. ants that shipments all were subject to reinspection the packaging at location.

The memorandum was not disclosed to de-

fense counsel well until into the trial. 01m-

stead pretrial disclosure, claims that in ac-

cord magistrate’s with the discovery order, would have resulted in a different strategy. UNITED America, al., STATES of et Plaintiffs, Appellants, We first note we deal here with delayed disclosure rather than with total v. suppression. cases, In such reversal will KLUBOCK, Daniel al., et granted only where defendants were Defendants, Appellees. denied an opportunity use the evidence No. 86-1413. effectively. United Johnston, States v. 425; 784 F.2d at United Drougas, v. States United States Court Appeals, (1st Cir.1984); United States First Circuit. Peters, v. (1st F.2d Cir. Heard Oct. 1986. 1984). In United Hemmer, States (1st F.2d 10 denied, Cir.), cert. Amended Panel Opinion 1218, 104 Oct. 1987. we applied two-prong inquiry to deter

mine when prejudice resulted: whether the

actual disclosure subsequent altered the de-

fense strategy, whether, given and timely

disclosure, a different defense strategy would have resulted. Id. at 13. Applying Criscitelli, Sara Dept, Justice, Wash- this test to the facts here results ington, D.C., with whom Weld, William F. negative queries. answer to both Defense Atty., U.S. and Sosman, Martha B. Asst. enjoyed counsel day full after disclosure Chief, Atty., Div., Boston, Civil Mass., to reconsider their strategy light of the were appellants. on brief for evidence, new Peters, United States v. cf. S. Michael Greco whom Richard W. 732 F.2d at 1009 (considering preparation Renehan, David A. Hoffman and Hill & time equation as factor in prejudice), but Barlow, Boston, Mass., were on brief for made limited use this evidence in either appellees Mass. Bd. of Overseers, Bar the cross-examination of Carbone or in fi- Counsel, Bar Daniel Klubock. argument. nal Furthermore, it remains Benjamin Fierro, III, Smith, Edward J. unclear early how disclosure of the memo- DiCara, Selig, Sawyer & Holt and Peter W. randum would have altered the defense Agnes, Jr., Boston, Mass., were on brief strategy. The tapes disclose Olm- for appellee Mass. Bar Ass’n. stead directing rig others samples conceal pieces, defective but also reveal Max D. Stern with Garin, whom Patricia that he discounted possibility of detec- Stem Shapiro, & Baker, Jeanne Silverglate, tion the packaging plant.4 light In of Gertner, Baker, Fine, Mizner, Good & Mat- evidence, we find that delayed dis- thew H. Feinberg Segal, Moran & deny closure did not defendants oppor- Feinberg, Boston, Mass., were on brief for response to a junk concern pieces that the puttin’ it’s, package ’em in a in these might _ packaging detected at stage, Olm- packages. I don't something think like girl, stead stated: girl “The packa- that’s that, I_(Pause) get through.” It’ll 'em, gin just, she's goin’ she’s settin’ there like (“PF 15”),2 Mass. torial Function 15 which states Bar Ass’n and Boston intervenors Lawyers. that: Defense Ass’n of Criminal unprofessional prose- It is conduct for a President, Thomas, American Eugene C. attorney an to a cutor Diamond, Idaho, Boise, Ass’n, Paul S. Bar prior judicial approval in jury without Pa., H. Goldblatt and Steven Philadelphia, prosecutor where the circumstances D.C., Cole, Washington, on brief G. Charles compel attorney/witness the seeks to Ass’n, curi- Bar amicus The American for concerning person provide evidence a ae. represented by attorney/wit- who is CAMPBELL, Judge, Chief Before ness. TORRUELLA, Circuit BOWNES and Thereafter, the United June

Judges. for States District Court Massachusetts specifically its Local Rules to in- amended PANEL OPINION AMENDED Court, clude PF 15 as a rule of the District TORRUELLA, Judge. Circuit July effective 1986.3 question of first appeal presents a This response prosecutorial of the federal implicates the directly impression which filing establishment to PF 15 was courts, of the district rule-making powers gives ap- the law suit which rise to this rights guaranteed indirectly, peal.4 The and various of its United States the Constitution.1 Amendment of Sixth prosecutors who are of the Mas- members precise point us whether before bar,5 invalidity of PF sachusetts claim the adopt local rule can district court 15 both as a rule of the SJC and as a local prior judicial to seek requires prosecutors rule of the District Court. The substance serving grand jury sub- approval before allegations are that PF 15 violates attorney, purpose of upon an for the poena Supremacy Clause of Constitution attorney’s obtaining about evidence allegedly conflicts with the Fed- because clients. eral Rules of Criminal Procedure and feder- law, the local Background al substantive and because adopted rule which PF 15 exceeds the Dis- early 1986 the Judicial Court rule-making powers. trict Court’s (SJC), prompting of Massachusetts Association, hearing Bar After a the District Court on of the Massachusetts plaintiffs’ adopted February known as Prosecu- 1986 denied re- an ethical rule Const, concerning requirements 1. U.S. 6: the ethical and rules amend. practice of law of the Commonwealth of prosecutions, In all the accused shall criminal Massachusetts, shall constitute misconduct enjoy right the Assistance of ... have * * grounds discipline and shall be for *. Counsel for his defense. requirements and rules concern- The ethical Codified 2. at SJC Rules 3:08. ing practice mean those canons law adopted by Judicial and rules incorporated by Prior to that date PF was 3. Massachusetts, embodied in Rules Court 3:05, the District Court’s Local Rules reference to ** 5(d)(4)(B). of said court *. origi- 3:07 3:08 of Local Rule That rule virtue nally provided: Actually, the suit was filed on December attorney Acts or omissions an admitted * * * prior after the SJC had enacted PF but practice before this Court which violate * * * taking January to its effect 1986. The suit Responsibility the Code of Professional 3:08, challenged part SJC Rule thus 15 as constitute shall misconduct and shall be * * 5(d)(4)(B) incorporation into and its Local grounds discipline *. The Code of this, however, original in its None of form. Responsibility Professional means that code any way. dispute alters the outcome of this state, adopted by highest court of the * * * except pro- commonwealth as otherwise Weld, Attorney by specific 5. William F. United States vided Rule of this Court after con- * * Massachusetts, Craig the District of to, C. Donsan- sideration of comments *. Branch, 5(d)(4)(B) Crimes subsequently Director of the Election As amended Local Rule Justice, Department Division of the now states: Criminal Dabrowski, attorney Acts or and Albert S. Assistant United States omissions admitted to * * * practice Attorney before this Court that violate for the District of Connecticut. quest for an injunction, holding that PF 15 appellants Nonetheless press this claim was within the judiciary’s supervisory pow- against the possibility that a prose federal er grand juries, cutor, over not was violative of member bar, Massachusetts the Supremacy Clause, may be and did imper- theoretically vulnerable to being missibly charged in state disciplinary forum if interfere with prosecutori- federal he/she acts responsibilities. contrary al to PF jurisdic ain tion other than Massachusetts, (for exam appeal On plaintiffs-appellants (1) claim: ple, plaintiff if Dabrowski, a member of the that the power District Court lacked the bar, Massachusetts serves a promulgate rule, PF 15 as (2) a local that Connecticut, where he is an assistant Unit the Supremacy Clause bars enforcement of ed States attorney, compliance without PF against 15 prosecutors, federal (3) 15). PF with If PF 15 is literally, read that PF wanting 15 so policy sound appellants’ fears, although somewhat far that value this Court should exercise its fetched, cannot be totally discounted. We supervisory powers to it. invalidate free, are not however, ignore the record The Supremacy Clause issue in this case and the policy statements of charged those with administering PF 15. view, In our appellants’ arguments re- See Field Brown, v. 981, garding the Supremacy Clause are either (D.C.Cir.), denied, cert. 939, U.S. present moot or fail justiciable contro- . 2160, S.Ct. (1979) L.Ed.2d 792 time] versy interpreted As by defendant-appellee is axiomatic that the Supremacy Klubock, Bar Counsel of the Massachusetts Clause of the Constitution6 has relevance Board of Bar Overseers and person only to state interference with federal law. charged instituting all disciplinary See Hillsborough County v. Automated proceedings in Massachusetts, PF 15 will Laboratories, Medical Inc., 707, 471 U.S. applied not against be any prosecu- federal 2371, 2375, 105 S.Ct. (1985); 85 L.Ed.2d 714 tor any for action taken extraterritorially. Michigan Canners & Freezers Assn. v. Furthermore, Klubock has stated any Agricultural Marketing & Bargaining enforcement proceedings dealing with al- Board, leged violation of rules, ethical including Yet, L.Ed.2d 399 since its adop- 15, would, applied prosecu- federal tion Court, the District PF 15 can no tors, be brought only in the District Court longer be considered law, to be a state of Thus, Massachusetts. as presently in- because incorporation into the local terpreted and enforced the Massachu- rules, PF 15 has become law. See federal authorities, setts prosecutors federal who United States Hvass, 355 U.S. 574- are members of the Massachusetts bar are 78 S.Ct. subject to PF 15 only for their actions It is immaterial origin that its lies with a within the District of Massachusetts, and, rule By of the SJC. its absorption into the cases, in such through disciplinary action rules, indirectly first original brought only in the federal forum. That version of Local Rule 5(d)(4)(B), and later forum also has before it the policy state- by specifically including SJC Rule 3:08 ments of the authorities, Massachusetts (which 15) contains within the text of upon which are relying we this deci- Local 5(d)(4)(B)), Rule PF 15 is as much sion. While such policy continues in ef- federal law if enacted initially by fect, there is no case or controversy for us district court. extent, To that decide, Su hence there is remaining no premacy argument Clause clearly spuri Supremacy Clause issue. See Field v. ous. Brown, supra. We, course, of pre- cannot Const, VI, 6. U.S. art. cl. States, 2: Land; shall be supreme Law of the Constitution, This Judges Laws every of United State shall be bound States which shall made be thereby, in Pursuance anything in the Constitution or Laws thereof, made, and all Treaties or any shall Contrary State to the notwithstanding. made, Authority under the of the United Rules, ders, 62 Judica- In Praise Local policy, or changes in the stated diet Weinstein, 1978); Re- (June July, any legal ture 28 the outcome what would — Pro- Rulemaking Federal Court thereby should created situation —we form Note, (1976); cedures, 76 Col.L.Rev. required bridge until proverbial cross Rules, 67 Col.L. 83 and the Local circumstanc- so the constitutional to do Comment, (1967); Local Rev. 1251 es. in the Federal Procedure Rules Civil the District Rule-Making Power Survey, 1966 Duke District Courts—A Courts L.J. the district accepted that generally It is not, appeal, purposes of this We need rule-making powers both have broad courts or extent of this fully describe the nature inherent nature of by reason of Initially it is sufficient rule-making power. ex-statute, see Link v. Wa- process, judicial cases make reference to the various if we Co., Railroad bash holding generally limited that this (1962); United States 8 L.Ed.2d 734 (1) procedural rather than substantive Cranch) 32, 34, (7 3 Hudson, 11 U.S. v. Battin, matters, 413 U.S. Colgrove see v. Truck- (1812); Riggins v. L.Ed. 259 Eash 2448, (1973) 149, 522 93 S.Ct. 37 L.Ed.2d (3d Cir.1985)(en 557, Inc., 561 757 F.2d ing (local six-person juries rule that established statutorily banc), powers pursuant and permissible is a for civil cases 28 U.S.C. in the courts. See vested innovation), (2) are not inconsistent 57;8 2071;7 Fed.R.Civ.P. Fed.R.Crim.P. § Rules, Hawes v. Club with the Federal see States, 266 83;9 U.S. Michaelson v. United 140, Comandante, 535 F.2d Ecuestre El 18, (1924); 66, 20, L.Ed. 162 42, 69 45 S.Ct. Cir.1976)(local (1st requiring non- 143 rule Wall.) 505, Robinson, (19 parte 86 U.S. Ex post security for domiciliary plaintiffs to (1873); 510, Anderson v. 22 L.Ed. 205 costs, expenses attorneys’ fees is valid Wheat.) 204, 227, (6 Dunn, 5 L.Ed. 19 U.S. Rules), (3) contrary to Federal and not Inc., (1821); Riggins Trucking 242 Eash v. Federal statutes. See Johnson v. Bank, Community 686 F.2d supra; Ma v. 479, 503, 53 S.Ct. Ry., Manhattan 289 U.S. denied, 459, (7th Cir.), 459 cert. U.S. 471 (local 721, 730, (1933) L.Ed. 1331 rule 77 287, 273, 962, reh’g L.Ed.2d 103 S.Ct. 74 regarding assigned judge to district work 504, denied, 74 459 U.S. 103 S.Ct. specific as inconsistent with statu- invalid generally Rob L.Ed.2d 642 See designated tory provision regarding circuit erts, Uniformity in Federal Myth of judge). Rule 83 Procedure: Federal Civil Civil Powers, ethical or Rule-making 8 Whether it is characterized as and District Local (1985); ques- in Puget procedural, L.Rev. 537 Flan- or whether the Univ. Sound any by amendments so made district court § 28 U.S.C. 2071 states: 7. upon promulgation shall their be furnished to Supreme Court and all courts estab- judicial Administrative council Congress by may Act of from time to lished and be Office of the United States Courts prescribe rules for the conduct of their time public. made available to the In all cases not Such rules shall be consistent with business. rule, provided by judges the district Congress practice and rules of Acts of magistrates may regulate practice any their prescribed by Supreme procedure Court. manner not inconsistent with these rules or of the district in which act. those pro- Federal Rules of Criminal Procedure 57 vides: Rules of Civil Procedure 83 states: 9.Federal by majority court action of a Each district majority by action of a Each district time, judges may thereof from time to judges may thereof from time to time giving appropriate public notice and an after governing practice its make and amend rules comment, opportunity make and amend Copies not inconsistent with these rules. governing practice any not inconsistent by rules amendments so made dis- rules and adopted promulgation rules. A local rule so shall upon with these trict court shall their specified by effect the date take Court of the United furnished to rule, provided by district court and shall remain in effect unless States. In all cases not abrogated may regulate practice the district court or their amended the district courts judicial with these council of the circuit in which the manner not inconsistent Copies district is located. rules and rules.

653 tion derives result statutory delega and his client. wedge This is the natural 10 tion judicial inherent authority,11 consequence of several underlying factors competence of the district courts to make created this anomalous situation. Most local rules regarding the admission of at obvious is the fact that the client is un- torneys to bars, their respective best, certain at and suspicious worst, control of their thereafter, conduct cannot that his legitimate trust attorney his at this late seriously date be questioned. may be subject to betrayal.12 And because Roadway See Express Piper, subpoenaed U.S. attomey/witness may him- 752, 766, 2455, 2464, 100 S.Ct. 65 L.Ed.2d self feel intimidated, take fact (1980); Cohen v. Hurley, place U.S. if there not even minimal ethical 123-24, 81 6 L.Ed.2d 156 control regulating the subpoenaing of an (1961); parte Ex Garland, (4 Wall) U.S. attorney/witness to seek evidence against (1867); 18 L.Ed. 366 parte Ex Sec his client. ombe, (19 How.) 9, U.S. 15 L.Ed. 565 subtle, More but perhaps important more (1856); parte Ex Burr, (9 Wheat.) in terms of the setting ethical within which 529, 6 (1824); L.Ed. 152 Eash, supra, 757 PF framed, 15 is is the immediate conflict 561; F.2d at Goldstein, Kevlik v. of interests created between the attor- (1st Cir.1984); Brown v. ney/witness and his client serving Virginia, 359 F.Supp. (E.D.Va.1973), of a subpoena in the context of what is 'd, aff 38 contemplated by PF 15. witness, As a Naturally, pow attorney/witness has separate legal and er not be exercised arbitrarily. In re practical interests apart from those of his Fisher, (7th F.2d Cir.1950), client. These interests may or may not denied, cert. 825, 340 U.S. 59, 71 S.Ct. 95 coincide with those of the attomey/witness (1950); L.Ed. 606 see Koningsberg v. State and his client. The mere possibility of such Bar, 353 U.S. 1 L.Ed.2d a conflict is sufficient to problem. create a 810 PF 15 clearly is a local rule A minimal by impartial overview an observ- which seeks to discipline control within its er, provided isas by PF go can far in membership and, bar thus, gen within the preventing the creation of these ethical eral rule-making power of district courts. conflicts between the attomey/witness and his That there are client. latent ethical in issues serving of subpoena on or prospec- actual Closely related point to this last is the tive opponent counsel perceived should be diversion of interests and resources without much difficulty. Even where an brought by about the conversion of the indictment may not issued, have and thus attorney into a witness. The attorney now technically the attorney/witness is yet has a difficult “second with, front” to deal an “adversary,” since the subpoena regu- in which he must dedicate his own time and lated PF by 15 seeks to compel evidence resources looking to after his own inter- “concerning person who represented is ests, while at trying same time pro- to by the attomey/witness,” it relates to an tect those of his client. The strain established attorney-client relationship. attorney’s time/resources, to say nothing serving of a subpoena under such cir- of disruption in his/her repre- client’s cumstances will immediately drive a chill- sentation, goes beyond far a mere conflict ing wedge between the attomey/witness of interest situation. Although impos- isit 10. See 28 U.S.C. § which states: Clephane, F.Supp. (D.D.C.1947); 77 103 Gold cf. smith v. all United courts of the States Bd. Appeals, Tax parties United States 270 may plead 46 70 conduct L.Ed. per- their own cases sonally as, byor by counsel the rules of such courts, respectively, permitted attorney-client cannot, relationship are manage course, and conduct causes promote therein. used to illegitimate shield nothing acts and opinion contained this parte Garland, 11. See Ex (4 Wall.) 333, 71 U.S. interpreted should be fostering such conduct. (1866); 18 L.Ed. Burr, parte (9 Ex See Gordon-Nikkar, United States v. Wheat.) 529, (1824); 6 L.Ed. Laughlin (5th Cir.1975). accurately,13 logical quantify (1st Cir.1984) sible to aff'd, is 751 F.2d 13 (subpoenas presume PF that the unrestricted use of arrangements fee uncover at between subpoenas14 will result in the reduction torneys and their pending clients trial in effectiveness, cases, in criminal investigation state court and under ethically those counsel who survive such a properly quashed); district court see also procedure, discourage and will tend to at- Jury subpoena, In re F.Supp. torneys providing representation from (D.Mass.1985) (subpoenas to uncover controversial criminal cases. legal relating alleged files sham mar

Again vein, along by riages service of a quashed). We cannot overlook the attorney, on the the attor relationships fact that the which are sub ney possible is converted into a witness ject regulation and control the courts against case his client. Because Can tripartite They are in nature. concern not Ethics, ons of see ABA Model Code of only dealings of counsel and the courts Responsibility, Disciplinary Professional clients, and of counsel and their equally but 5-102(A) (B) (1982),15 prohibit an important, that of counsel versus counsel attorney being a witness a case in in their goes roles. It adversarial without attorney, which is he also counsel will saying relationship that this last includes possibly required resign attorney counsel/prosecutor that of the versus the right for his client. Not to coun attorney. Any counsel/defense situation sel of choice under the Sixth Amendment implicates condition of these process implicated, but also due is thus professional relationships in any their attomey/prosecutor because the poten possibilities situations, multi-faceted tially given control over who shall be his potentially subject to reasonable regulation attorney/adversary. For those who control the courts. PF 15 is such a look purely discussion as one of regulation reasonable dy created value, theoretical suggest we reading namics of changing circumstances. recently our decided United v. Dioz States zi, (1st Cir.1986). 807 F.2d 10 clear dissenting colleague Our feels get that courts should an ethical handle on is invalid because it relates to a national this situation at the possible earliest mo problem which should be dealt with ment. Congress “acting or the the national level ... district Last, least, necessarily [because] [a] not but is the may court potential effect such a fundamental abuse that underlies natu- change through promoted ral local rules.” This by point tendencies of pos- adversarial view, however, Again tures. stems from misconception reference to cir- a recent litigation, cuit possibility for issue improper before us. The fundamental use of attorney subpoenas in underlying a problem by PF 15 con- attacked PF 15 is an text are not far-fetched. See In re brought Grand ethical one about the concerns Matters, Jury F.Supp. 103, (D.N.H.), just we have enumerated. The rela- ethical Genego, Risky ought 13. But see Business: be called as a Hazards witness on behalf of his Being a Lawyer, client, Criminal 1 Crim. he shall withdraw from the conduct of Defense (1986); Zwerling, Just. 1 firm, Federal Grand Juries v. any, the trial his if shall not contin- Attorney Independence Attorney-Client trial, representation ue except that he Privilege, Hastings Note, (1976); L.J. 1263 may representation continue and he or a Jury Subpoenas Target’s Attorney: a lawyer may testify in his firm ... if the testi- Preliminary Showing, Need a 20 Ga.L. mony solely will relate to an uncontested mat- Rev. 747 ter. 5-102(B) Disciplinary provides Rule that: By 14. subpoena we mean a under the cir- [I]f, undertaking employment after in con- sought cumstances to be covered PF 15. templated pending litigation, lawyer learns lawyer or it is obvious that he or a Responsi- A.B.A.Model Code of Professional may his firm be called as a witness than other bility, Disciplinary 5-102(A) (1982) Rule states: client, of his behalf he continue the If, undertaking employment after representation in contem- apparent until it is his plated pending litigation, lawyer learns testimony prejudicial is or to his lawyer or it is obvious that he or a in his firm client. tionships courts, between attorneys and consequences cedural of PF 15 should ren- clients, although their obviously of interest der it invalid. Congress the Supreme Court, have Nevertheless, we must be concerned with traditionally been left to the primary regu- judicial limitations on rule-making, es- lation of the courts before whom those pecially requirement that any local rule problem arise. The regulation by district not conflict with the Federal Rules or Fed- courts of the ethical conduct of those who eral Appellants statute. argue specifically practice before it can hardly be called “a that PF 15 conflicts with Rule 17 of the change.” fundamental Federal Rules of Criminal Procedure. There are two additional why reasons we Rule the Federal Rules Criminal believe the dissent to be First, incorrect. Procedure problem the fact that a in scope national One of appellants’ primary attacks on PF does not necessarily remove the need for is15 their contention “requiring prior local solutions. In the event that national judicial approval of grand jury subpoenas decision makers ultimately seek to resolve is inconsistent” with Rule 17 of the Fed.R. problem, experience gained through Appellant’s Crim.P. Brief p. 18. To local efforts only can make for more in- the extent that argument is directed at formed federal rulemaking. Meanwhile, in concept that PF requires judicial the absence of a rule, uniform federal fol- approval prior to the issuance aof lowing the well known maxim that nature jury subpoena, pp. 18-23, id. at such a view vacuum, abhors a local solution to the can result from an reading erroneous problem version of the is the best that PFof 15. Nothing in PF 15 in any way can be done. prosecutor inhibits a seeking the is- Second, although suance of a 15 does proce- have the clerk of the pursuant dural court as well as ethical consequences, Fed.R.Crim.P. those 17(a).16 consequences Since PF 15 are no more does not “fundamental,” relate to the issuance of the subpoena, than the changes there is no effected con- the district flict between clerk’s Colgrove Battin, ministerial authori- toty subpoenas issue under Fed.R.Crim.P. 17(a), and the imposed duties prose- on the approved a local cutor under provisions rule PF 15 establishing regarding six-person juries in civil subpoena. service cases. The Court held that the local rule ” “not was ‘basic innovation’ Clearly, perceived problem which the proscribed to local rulemaking, it because language (“to of PF subpoena an attor- did not “bear on the ultimate outcome of ney”) seeks control is the service of litigation.” Id. at 163-64 n. 93 subpoenas on attorneys by prosecutors. S.Ct. at 2456 n. 23. Be that as may, it is As has been previously discussed, ante at difficult imagine to changes more “funda- 653-55, it is action, the serving of nature, mental” in or concerning issues attorney with a jury subpoena, which national or constitutional interests triggers which the various concerns that are implicated more than a local rule given have rise the to of PF enactment changing the numerical composition of i.e., fed- the “chilling” of the attorney-client juries. eral If such rulemaking local was relationship, implication the of Sixth approved by the Court Colgrove, we fail concerns, Amendment the creation of con- to see any why reason the ethical and pro- flicting interests an attorney between and 16. Rule 17(a), Fed.R.Crim.P. reads: subpoena, clerk shall signed issue a and subpoena A by be shall issued sealed but the clerk otherwise in party blank to a re- under it, seal of the court. questing It shall state the who name shall fill in the blanks before title, of the court and any, if pro- it is served. subpoena A shall by be issued ceeding, and shall person command each magistrate to United States proceeding in a be- whom it is directed to give him, attend and testimo- fore but need not be under seal of ny at the place time specified therein. the court. client, possibility by for filing quash his/her adver- a motion to modify.18 or sarial abuse. accept appellants’ arguments Were we to regarding consequences of omission of Proceeding appellants’ crux of to the express authority Rule, to act under this nothing challenge, express there is we would have to conclude that motions to language specifically pro- of Rule 17 which quash modify subpoenas or ad imposed upon hibits the ethical controls testifican- dum are to par- unavailable witnesses or prosecutors, bar, qua members of the Yet, very ties. that is the remedy which only which 15 establishes. fact Rule appellants urge 17(d) (e) upon us in directly appeal are as concerned with the concern, providing adequate serving subpoenas, subpoenaed but this relief to at- (d), paragraph related torney/witnesses, one, which, deals with the as we all persons know, that are authorized to serve sub- routinely litigated in the various poenas and the manner in which service is very district courts. The fact that there effectuated, (e), paragraph to be while as to remedy exists a quash entitled “motion to concerning rule is limited to matters or modify subpoena testificandum,” ad place particular of service.17 No lan- Rule sans indicates that silence guage in Rule 17 refers to the issue at Federal procedure rules of does not neces- hand. sarily mean powerless that the courts are

Appellants however, perceived problems to correct argue, arise, that the fail- decision, ure of require any intervening by rule, Rule 17 to either byor where judicial approval prior to serving appropriate. subpoena against manifests an intention In sum prohibition, we know of no ex- procedure. establishment of such a press implied, or in Rule or for that

Appellants further contend that the failure in any matter Federal statutory provision provide prior judicial approval as is by appellants, referred to which inhibits PF required by PF substantially does not 15 as a local rule of the District Court. rights affect the attorney/witness or supervisory power Our client, his/her subpoena because the can always challenged by quash, be a motion to Ironically, although appellants deny the after service has been effectuated. supervisory power District Court to Appellants’ enact see 14-33, Brief

Interestingly enough, as can readily be they press upon us the reading seen from a exercise of of Rule there our is no specific supervisory provision authority proscribe in that rule a motion quash subpoena regulation Court’s ad the members of its testificandum. provision related bar. Id. at Particularly contained in 40-47. since that paragraph (c) thereof, grants control specifically vested statute right challenge subpoena duces tecum within the authority of each individual 17(d) Fed.R.Crim.P., (e), provide: Rules circumstances and in the manner and be (d) subpoena may 28, U.S.C., provided Service. A served as served in Title § 1783. marshal, by deputy the person by any his other 17(c), Fed.R.Crim.P., 18. party who is not a and who is not less states: years age. than Service of a subpoena may person A also command the by delivering copy shall be made the thereof to books, produce whom it is directed to person tendering named and to him papers, objects designated documents or other day’s the fee mileage for 1 attendance and the therein. The court promptly on motion made mileage allowed law. Fees and need not may quash modify subpoena, compli- if tendered to the witness service of a ance would oppressive. be unreasonable or subpoena issued in behalf of the United States books, may papers, direct that doc- agency or an officer or thereof. objects designated uments subpoena or (e) Place of Service. produced be prior before the court at a time (1) subpoena In requiring United States. A prior to the trial or to the time when are hearing attendance of a witness at a or to be upon offered in any place trial evidence and served at their within the production books, permit United papers, States. doc- (2) subpoena objects Abroad. A portions directed uments a wit- or to thereof to be foreign country ness in a shall issue inspected by parties under the attorneys. and their court, 1654, see 28 supervi- such U.S.C. § supervisory powers. As indicated, PF 15 is sory exists, authority, if it exists to closely nature, worded and is a limited correct abuses discretion. In re See answer problem. to an ethical face, On its Berkan, (1st Cir.1981). F.2d See it is clear that it does not inhibit judicially Beale, Reconsidering Supervisory approved Power un attorney subpoenas where the in Criminal Cases: attorney/witness Constitutional is not provide “to served Statutory Limits on the Authority evidence person concerning who is repre- Courts, Federal 84 Col.L.Rev. 1433 sented by the attorney/witness.” view our PF constituting rather than Secondly, the interference, if any, with discretion, an limited, abuse is a reason- prosecutorial function, is highly unob- response able appears to what abe trusive. As contemplated, judicial ap- mounting professional problem. cita- See proval sought in an parte ex manner tions at footnote ante. We believe that prosecutor. Considering the require- district courts are in a position better to ments contained in the United States Attor- judge, in the first instance and absent ney’s guidelines19 internal seeking for at- discretion, abuse of what is appropriate torney/witness subpoenas under 15 cir- response problem. to this cumstances, it appear would that all rele- Lest there be misinterpretation vant information already readily avail- position about regarding Court’s able prosecutor to the presen- ex parte us, issue before goes without saying, tation to the district court. attorneys, just like all other persons, Lastly, there question is no Nixon, United States v. 418 U.S. 94 problem given which has rise to PF 15 is a L.Ed.2d 1039 are not mounting one. Judging alone from the above the subject law and are to its full legal considerable literature which has application appropriate under circumstanc- emerged subject, see, on this ante, footnote es. See United States Twomey, v. 806 13, to say nothing cases, ante at (1st F.2d Cir.1986); United v. States 654, the subpoenaing of attorney/witnesses Carbone, (1st 798 F.2d 21 Cir.1986); Unit under PF 15 appears circumstances ed Nieves-Pacheco, States 658 F.2d 14 present ethical concerns of wide-spread (1st Cir.1981), denied, cert. nature. Association, American Bar Grand At Jury Policy and (1977-1982), Model Act torneys not, by are status, virtue of such Jury Principles, 29; No. American exempt answering subpoenas when Association, Bar Reports with Recommen- properly served, including even when dation to the House of Delegates, Report compliance has not pro been made with No. HID 1986); (February, Report of the visions such 15. The consequence Committee on Criminal Advocacy of the of non-compliance with PF 15 is to be re Association of the Bar of the City of New solved different proceedings. non Such York, The Issuance Subpoenas Upon compliance does not excuse disobedience to Lawyers in Criminal Cases State and process. lawful Federal Prosecutors: A Call Immedi- track, Back on nothing we find PFin Action, ate Remedial July 1985. Fur- justify the triggering of the thermore, use of our when we consider the admission 19. Attorneys’ United States potential Manual contains adverse attorney- effects guidelines extensive concerning the issuance of relationship," client including the "risk that the subpoenas. instance, such For issuing before attorney (§ disqualified” will 9-2.- subpoena attorney appear for an before a 161(a)(F)(4)); and that “[t]he information grand jury, prosecutor a federal must deter- sought protected by [is] a valid claim of mine, alia, inter that the sought "information (§ privilege" 9-2.161(a)(F)(6)). issuing Before reasonably needed for the comple- successful attorney, prosecutor a federal investigation (§ tion of the prosecution” 9-2.- approval must also first obtain from the Assist- 161(a)(F)(l)); that "all attempts” reasonable Attorney ant charge General of the Justice were made "to obtain the information from Department’s Criminal Division. United States (§ alternative 9-2.161(a)(B)); sources" that the Manual, Attorneys’ 9-2.161(a). § “need for the information outweigh[s] ...

by appellants to the effect that in the Dis- Conclusion alone, trict of Massachusetts from many law and its facets is not an per attorney subpoenas year have been empty Rather, one, bottle. it is which like during years served the last four under PF good’ wine, is nurtured in vintage the of circumstances, compare fig- and we this experience. Recent experience has re- ure to the in criminal case load that District quired aggressive more prosecution of soci- approximately per of 306 to 463 cases filed ety’s fight against mounting the evils of year,20 possibility21 the arises that PF 15 crime. We vigorous commend both prose- very situations present could well be legitimate cution and all means aid of from 10.7 to of that District’s crimi- 32.6% This, however, laudable task. does not cases, insignificant nal proportion. not an society mean that can afford a “no holds dissenting colleague expresses Our con- approach barred” to law enforcement lest possible cern the as to effect that PF 15 engender the “solution” equal- faults of an might grand jury’s have the “mission” ly serious nature. independent as an investigatory body. For indicated, the reasons herein the Again, argument is misdirected. PF opinion the district court is of affirmed. 15 is grand not aimed at action. jury solely deals prosecutorial conduct in CAMPBELL, H. Judge LEVIN Chief prosecutor’s the capacity as a of member (dissenting). If, fact, the grand bar. a jury acting independently any prosecutorial of I influ- believe that PF 15 exceeds the rulemak- subpoena ence against ing issues authority an attor- of a federal district court. ney/witness, attorney/witness the my brethren, Like must I shall assume that the it, honor quash or move to the subpoena in United States District Court for the Dis- an appropriate independent manner. Such trict of Massachusetts incorpo- intended to by grand action jury has no relevance to rate its own local rule the so-called ethi- PF 15 none of the promulgated because cal rule ethical concerns Judi- previously implicated.22 mentioned are cial Hence, Court Massachusetts. primary question is not whether a state Far from concluding that adoption yield rule must Supremacy Clause incorporated local rule that PF 15 was single but whether a federal district court an abuse the district court’s discretion is empowered to adopt a rule like this. powers of the supervisory that it has bar, over the members we consider I think not. To grand condition a jury PF 15 to be a sound use of that authority. subpoena on a prior court’s approval re- See In re Pantojas, (1st 628 F.2d 701 Cir. duces grand jury’s power traditional 1980). call those witnesses pleases. it The Su- 20. Criminal filed in the cases District of substantively Massa- only by evidence is 'constitutional, express limited (1983), (1984), chusetts have been 306 statutory privi- common-law Report See Annual leges.'” Matters, Jury In re Grand Director, Administrative Office of the United (1st Cir.1984), (quoting Branzburg Hayes, Courts, States Years 1983-86. 665, 688, (1972)). L.Ed.2d The dissent's assertion of 21. This is if we assume the statistical worst grand jury unencumbered for the appellants, situation for with a distribution quoted passage begins undercut that "the subpoena per one PF 15 case. grand jury’s [power] substantively ... limit- accept 22. Even if we premise the dissent’s Not grand jury’s power ed....” limited, is the would, cases, PF 15 jury’s in some grand limit a it is limited common-law or statu- subpoena power, this would not invalidate tory privileges. PF 15 arose out of concern over rule. The jury’s dissent asserts that the prosecution practice that threatened to erode "uninhibited," subpoena power post at but attorney-client privilege and an accused’s quotes using it no law case that kind of lan- sixth rights. Accordingly, amendment if PF 15 Indeed, guage. dissent, trying support grand jury’s subpoena does power, limit grand jury’s its assertion pow- does for a so reason sanctioned "unencumbered,” post er is on lan- relies Court and this Circuit. guage suggests just this circuit which opposite: grand jury’s right "The every man’s preme analogous circumstances, Court in power “from prescribe time to time to rules courts, and in directly compara- two circuit for the conduct of their business.” Such circumstances, go ble ruled to have that so rules must be “consistent with Acts of improper far is an interference with Congress and practice rules of proce- and grand jury’s right every to prescribed historical man’s dure by Supreme Court.” evidence. See section II, below. Whether rules, therefore, Local must be consist- precedents or not these actually invalidate ent both with federal statutory and consti- PF point. They 15 is not the very show at tutional (including law judicial interpreta- operates least that in a policy area thereof), tions and the Federal Rules sensitive, important too and controversial Procedure, of Criminal which are the pri- regulated to be at a local court district mary means for regulating practice and Regardless level. rule, of the merits of the procedure in the district courts. The Ad- major change grand it is a jury practice visory Committee’s comments on Fed.R. procedure and promulgated should be 57 emphasize Crim.P. that local rulemaking only through an amendment to the federal is necessarily meant to be of scope. narrow rules, by Congress criminal through leg- Describing the Federal Rules of Criminal islation.23 Procedure as “intended to constitute a com- prehensive procedural code for criminal I. cases Federal courts” Advisory A district court’s to adopt local goes Committee say that, to touching rules on criminal is matters set Nevertheless it seemed best not to en- out Fed.R.Crim.P. provides, which prescribe deavor to a uniform practice as Each district court ... time detail, some matters to but to leave to time ... make gov- and amend rules the individual courts free regulate to erning practice not inconsistent with them, by either local by usage. rules or these rules. Among such matters are the mode of impaneling a jury, the manner and order (Emphasis provided.) interposing challenges jurors, to Rule and the other federal criminal manner of selecting the foreman of a rules (including pertaining grand to other jury trial ... and similar details. juries,24 and Rule pertaining subpoe- supplied.) (Emphasis nas) language This makes enacted were authority under of a clear that local rules were never statute, conceived (1984), U.S.C. 3771-3772 §§ changing be means for policies proper- which Congress specifically empowered the ly regulated at a federal level. Rather prescribe Court to plead- rules of are to address “some ing, matters of de- practice procedure governing crim- open by tail” left the criminal rules where inal cases for the district courts. Federal uniformity required. is not rulemaking further upon rest au- granted thority 28 U.S.C. 2071 given below, § For reasons in section II I delegates to the federal courts the present believe novel limitation 23. I am aware designed 15 is not discovery practices, tional example, or addi- grand jury undercut the defendant’s but to make that a devices, sure procedural tional such as demurrers? right properly respect- counsel is Clearly granted pow- Court was ed. It seeks to strike a new balance between the prescribe pleading, er to prac- uniform rules of grand jury’s prosecutor’s right of access procedure tice and for the district courts in evidence, right a defendant’s to the full just prac- order tice and avoid sort of variance protection of his It counsel. be time for procedure among the different courts. realignment; such say I do My not it is not. present uniformity, issue is one where merely view is rebalancing that this sort of protections as the rulemaking well of a national rights fundamental preme is work either for the Su- procedure, are called for. Court, rulemaking powers, under its Congress. for the the sort of task for jury practice procedure regulat- which individual granted courts district were ed Fed.R.Crim.P. and also a number of their rulemaking powers. limited If district See, e.g., 3321, 1331-34, statutes. etc. this, §§ U.S.C. why courts can do should not each district adopt different rules—addi- subpoena power much jury’s respect. circumstances, too In such the rules’ delicate to be the sort of controversial and silence is reasonably interpreted most that fits within a “matter of detail” district forbidding regulation by any further body rulemaking power. local Before court’s Supreme other than the or Congress. Court reasons, let me turning to these first refer That literal conflict is not the sole my colleagues’ argument that 15 is ground for “inconsistency” under Fed.R. not the “inconsistent” with federal criminal Civ.P. 57 was made abundantly plain by the rules literally it does not contra- because Atlass, in Court Miner v. U.S. 363 17(a) (which vene Fed.R.Civ.P. uncondition- 641, 1300, (1960). 80 4 S.Ct. L.Ed.2d 1462 ally empowers subpoe- the clerk issue case, despite the absence of a direct nas). My colleagues find no inconsistency any Rule, conflict Admiralty with General because PF 15 not ap- does call for court the Court struck admiralty down a local proval grand jury issuance of a before sub- rule that the allowed district court to order poena requires approval only be- —it taking depositions the oral part of as prosecutor fore subpoena. the serves the discovery process. Like the Federal Rules This is far too fine provide a distinction to Procedure, of Criminal the General Admi- is, convincing all, It rationale. after the “ ralty Rules authorized district courts ‘to Supreme Court, courts, not individual local regulate practice their in such a manner as Congress delegated to which pri- has expedient deem most for the due ad- mary power prescribe rules pleading, of justice, provided ministration of the same practice procedures for the district ” are not inconsistent with these rules.’ courts. See 18 U.S.C. 3771-3772 §§ 647, 1304, Id. at quoting 80 S.Ct. at General Mere absence of a clash between the strict Admiralty (emphasis 44 original). in letter of federal criminal rules and PF Although there was no direct conflict with 15 question does resolve the of incon- any Rule, Admiralty Court, General sistency. A local may rule be inconsistent focusing on history policies of and im- if it policies is discordant implicit with plicit rules, in rejected those the local rule explicit well as in the federal It rules. as “not consistent” with the General Rules. likewise be ultra vires if out harmony The Court change doubted that “a so basic policies with in controlling statutes or in as this be through effectuated interpretations by [should] the courts. See 28 rule-making power,” stating that such U.S.C. 2071 Thus “inconsisten- § fundamental cy” innovations will exist should legislates where a local rule “only be introduced in after in mature area which the federal consider- rules are ation of opinion informed surrounding silent from all relevant circumstances quarters, opportunities show that such with all the silence manifested an intent comprehensive integrated Court not to regulate fur- treatment ther. This is which such the situation consideration here. Neither affords.” 363 650, Fed.R.Crim.P. U.S. at provision 17 nor other 80 S.Ct. at 1306. See In re statutes, Jury federal criminal rules or Grand pro- Proceedings, 532, 558 F.Supp. judicial vides for approval (W.D.Va.1983)(courts of a 535-36 grand jury should exer- served, before it cise in adopting while touching restraint rules history law, and the case important issues) policy hereinafter (citing J. Wein- discussed, make it grand stein, clear that a jury’s Federal Court Rulemak- Reform of ability uninhibited to call Procedures, ing witnesses it 76 905, Colum.L.Rev. 930 right is a chooses (1976)).25 entitled to the utmost repeatedly emphasized ("the been has that court recognized federal courts have that rule- adopted rules congressional are under a limited making ultimately legislative power residing grant legislative See, power. e.g., Congress, Sibbach v. although delegated large mea- Co., 1, 9-10, & 312 Wilson U.S. 61 courts"). S.Ct. sure to the Courts must construe this (1941); Southard, Wayman 85 L.Ed. 479 delegation rulemaking power strictly, includ- (10 Wheat.) 1, 41-42, (1825); U.S. 6 L.Ed. ing requirement J. that local rules encroach Weinstein, Rulemaking Federal upon statutory neither federal law Reform nor Procedures, 905, (1976) Colum.L.Rev. 927-31 rules of procedure promul- civil and criminal case, present In the proponents of PF 15 (D.C.Cir.1973). task, Its of course, is to attempt importance to minimize its de- inquire into the existence possible crimi scribing it as a minor procedural de- nal conduct. Given mission, providing

vice dealing jury structure for has been instilled with investiga broad special problems of attorney subpoe- tory powers, foremost of which is right I question nas. do not subpoena- every man’s evidence. United States v. Dionisio, ing attorneys may, instances, 1, some 9, U.S. S.Ct. problem create a serious (although I (1973); In re think Jury Matters, the extent to which there are (1st serious abus- Cir.1984). In es requiring special United rule States v. Mandujano, can better ascertained at the level of national rule- 48 L.Ed.2d 212 making See locally). than supra. Supreme note stated, But I question do special that a screening the grand jury’s investigative power procedure can be properly established oth- must be broad if public its responsibility er than an amendment to the federal adequately to discharged. Indis- criminal rules or by legislation. pensable Were we to the exercise of power its writing on slate, clean a perhaps a differ- authority compel to the attendance ent view would be in order. But are testimony we witnesses, and to writing not slate; a require clean production of evidence. courts, Court and other infra, have made it (Citations omitted.) any prior clear that judicial screening of grand The jury’s unencumbered subpoenas impacts seriously question- compel to people appear to before it has upon ably protected information-gath- deep historical roots. See Blair v. United ering powers of grand jury. PF 15 is States, 273, 280, 250 U.S. very least an area so controversial L.Ed. 979 grand jury’s “[T]he sensitive to be beyond well right to every man’s evidence is substan- “matters of detail” which Rule 57 allows a tively only limited by express ‘constitution- single district court to regulate by local ” al, common-law or statutory privileges.’ rule. In re Jury Matters,. 751 F.2d (1st Cir.1984), quoting Branzburg v. II. Hayes, I turn now to precedents showing 2660, 33 L.Ed.2d that the silence of the federal rules and of PF requirement 15’s prosecutor that a Congress is not an invitation to local rule- subpoena not lawyers certain prior without making but rather indicates, in this con- judicial approval significant is a limitation text, regulation is foreclosed. upon the grand jury’s right every man’s precedents These stem from the deep re- evidence. It both imposes a spect and deference accorded the inde- block and that, raises the likelihood in de- pendence grand jury. ciding approve whether to disapprove grand jury part is a of neither the subpoena, an judge individual impose will judicial executive nor Although branch. substantive limitations of his own devising closely both, related to entity is an going beyond the “express ‘constitutional, ” independent constitutional See status. common-law or statutory privileges’ cur- Sirica, Nixon v. 487 F.2d 712 n. 54 rently recognized.26 Id. It forces the gated by part Court as (1st of Cir.1976) (local nation- rule "sub- not See, al rulemaking process. e.g., Clark, Carter v. vert the purpose rules"). overall of the [federal] (5th Cir.1980) (local 616 F.2d 228 requiring rule allegations verification of prisoner com- sets out no standard judge which a

plaints held to be policy inconsistent with re- is to determine whether or not to allow an flected in federal providing statute that written attorney low, subpoenaed. to be pointed As out be- declarations made penalty under perjury screening provision PF' 15 does not permissible were affidavits); in lieu of sworn necessarily any particular privi- dovetail with Hawes v. Comandante, Club el Ecuestre lege. Rather, assign rules done. the federal investigatory conform grand jury to largely of a courts a ministerial role predilections the district to the powers advance Fed.R. subpoena process.27 See in the judge. intrudes 6 & 17. Crim.P. refused Supreme Court has landscape by assigning to the district open jury to submit past compel the subpoena process. role in the court a new screening of its judicial prior concept, given good or bad Whether the Court Hayes, Branzburg power. discussed, clearly PF 15 is incon- law case contention journalists' rejected two independence degree sistent with testify be appear and compelling them to granted grand juries under the currently the First violate grand jury would fore a Procedure. Rules of press Federal Criminal speech freedom Amendment’s newsmen, not it will be guarantees. The indicated, power to grand jury’s As privilege. As ed, not claim an absolute did every evidence has tradition- compel man’s reporter here, argued only that by “express ally limited constitu- been testify appear and forced to should statutory privi- tional, common-law that his testi shows government until the Matters, Jury leges.” In re Grand oth mony is relevant unavailable Here, freely privilege most F.2d at 17. The Court at 680. er sources. PF 15 is the supporting Sixth invoked “ unpersuasive: argument ‘[The found right counsel. The Amendment to Su- body with grand grand jury] inquest, is a however, Court, that preme has determined inquisition, the investigation powers of and do not attach until rights Amendment Sixth not to limited inquiries scope of whose proceed- adversary judicial that “the time fore propriety of narrowly by questions Kirby Illi- ings have been v. initiated.” of the investi- probable of the result casts 1877, 1881, nois, 92 406 U.S. S.Ct. 688, 2660, at at 92 S.Ct. gation_Id. (1972).28 411 PF 15 thus cannot 32 L.Ed.2d States, 250 U.S. quoting Blair v. United procedural device intended viewed as a 471; 282, S.Ct. at see also United States 39 existing privileges. merely implement to 764, Dionisio, 1, 35 93 S.Ct. 410 U.S. v. clearly something new and different— (1973) (no re showing of need 67 L.Ed.2d procedural im- substantive as well as with grand may subpoena quired jury before own, determining in of its since plications obtaining purposes voice witnesses permit subpoenaing of the an whether exemplar). attorney, judge must formulate new each in provisions the Federal None privileges. outside the current See criteria (nor in of Criminal Procedure Rules 26, supra. note statute) grand juries deal and which procedural PF 15 is no mere routine That the district subpoenas any way in hint that device, in and contro- but is a novel fact power is entitled to exercise court practice upon present federal inroad prescribes, nor versial subpoenas, screen 15 being procedure, is further demonstrated precedent for this historical and there rights Although expressly his client’s Sixth Amendment allow the district federal rules 27. The attached, quash oppressive subpoena attorney testifying duces an before have not an tecum, screening provision no in may attorney-client privi but make grand jury assert 17(c). There of service. advance is Fed.R.Crim.P. lege revealing protected to avoid confidences. authority corresponding grant express no See, Proceedings e.g., Jury re testificandum, although, quash a ad 1571, (11th Freeman, 708 F.2d 1574-75 Matter of notes, majority courts have as- some the established, however, Cir.1983). It is well authority quash. the existence of sumed such privilege not excuse a witness from the does courts, Wright in what has Professor Other duty appear privilege claim the first to and recognition approach" and in the "better called questions. response particular In re Certain power of to control who limited courts 1488, Investigation, Complaints F.2d under 783 grand jury, have found that before the testifies — denied, U.S. -, Cir.), (11th cert. subpoenas quash ad lacked the to Wright, S.Ct. L.Ed.2d Federal Practice See C. testificandum. & Procedure, 273 at 149 & n. 275 at § § (1982 Supp.1986) (compil- Supp. 16 & n. 7.1 & cases). ing circuits, perceiving the fact that expeditious two other administration of the criminal inconsistency a fundamental between the laws.” 410 U.S. at 93 S.Ct. at 773. grand jury’s court-approved mission and a Given the Court’s view in Dionisio and need, showing rejected have both such Branzburg, supra, and the above circuit specific us, approval opinions, context before it is very obvious at least that PF attorney-witness. In In re Grand 15 ventures into difficult and controversial Jury Subpoena Doe, Served 781 territory. This is not say to' that a rule of (2d Cir.1985) (en banc), F.2d type cert. set out in PF may never be 1515, 89 denied, adopted Congress said, L.Ed.2d 914 the Second Circuit Court. Compare Burlington Northern — Railroad Company Woods, To impose requirements additional -, government show its need for the Perhaps when sought

information attorney that the confronted with the evidence proponents is the source which submit, for that information of PF 15 hamper would severely investigative would modify the projected views grand jury, function of the if stop Branzburg Dionisio, so as to accom- grand jury ‘dead its tracks.’ modate such a rule. See note supra. My point is simply that policy implica- The Seventh Circuit has stated that to tions the rule far exceed what a single require showing subpoena- need before district court properly adopt on its ing attorneys contrary would run to the guise own in the of a local rule. isWhat method which grand jury operates. involved is no mere local supple- grand jury A leads, tracks down ment but a change controversial in federal innocent-looking even information grand jury practice procedure, If be useful. jury has some adopted only should be at the national level information on a subject, may seek after “mature consideration of informed more to confirm or contradict what it opinion from all quarters.” relevant Miner has. How much “enough” information is Atlass, v. 363 U.S. at 80 S.Ct. at judgment is a matter for the of the 1306.29 grand jury prosecutors rather than the courts. Whatever the merits of 15— I pass which do not judgment legislates Klein, re (7th Cir. —it in an area beyond Congress’s far 1985). grand As a may jury pursuing a Supreme delegation Court’s limited of rule- number of activities, criminal interrelated making authority to local tribunals. PF 15 piece the relevance of testimony one simply is not some minor apparent evidence not be until the “ethical” variation. It marks a investigation. end dramatic See United departure controversial Dionisio, States v. his- 410 U.S. at 93 S.Ct. torically limited may, therefore, at 772. courts to be difficult or supervise grand impossible jury, interposing articulate the need for certain that, step very contexts, testimony at a similar midinvestigation both hearing. Supreme have, Court and circuit courts so Dionisio ex- far, disallowed. pressed that, the similar “Any holding view that would saddle jury with mini- If a rule like PF required, Congress 15 is preliminary trials and showings or, least, would as- Court under its suredly impede investigation its and frus- rulemaking authority, acting at the nation- public’s trate the level, interest the fair and al promulgate should it. A district recognize, my colleagues argue, tant, I 29. that the history questioning there was no such Supreme Court regu- allowed district courts to by the Court as been has noted here to the by local petit juries late rule the size of civil question. innovation in —no This is not an area matter, Battin, Colgrove small to be sure. v. reasonably presumed where it can be that the 37 L.Ed.2d 522 Court would be to leave satisfied matter tradition, here, lacking But there was a of local rulemaking. jury arrangements. control over impor- More effect such fundamental change through local rules.

Believing as I do that the district court rulemaking power, I its also be-

exceeded Supremacy

lieve for like reasons prevents Massachusetts from

Clause ever

enforcing against prose- federal

cutor. reasons,

For these I dissent. America, al.,

UNITED STATES et

Plaintiffs, Appellants, KLUBOCK, al.,

Daniel et

Defendants, Appellees.

No. 86-1413.

United States Appeals, Court of

First Circuit.

Heard En 3, 1987. Banc June

Decided Oct. Criscitelli, Justice,

Sara Dept, of Wash- ington, D.C., Mueller, with whom Robert S. Acting Boston, Atty., Mass., was on brief, plaintiffs, for appellants. Greco, Michael S. with whom Richard W. Renehan, David A. Hoffman and Hill & Barlow, Boston, Mass., brief, were on defendants, appellees Massachusetts Bd. of Overseers, Counsel, Bar and Bar Daniel Klubock. Stern,

Max D. Garin, with whom Patricia Shapiro, Baker, Stern & Silverglate, Jeanne Gertner, Baker, Fine, Mizner, Good and Segal, Matthew H. Feinberg, Moran and Feinberg, Benjamin Fierro, III, Edward J. Smith, DiCara, Selig, Sawyer Holt, & Peter Agnes, Jr., Boston, Mass., W. Kari Tannen- Gregory brief, baum and Rona were on Ass’n, intervenors Boston Bar Massachu-

Case Details

Case Name: United States of America v. Daniel Klubock

Court Name: Court of Appeals for the First Circuit

Date Published: Oct 30, 1987

Citation: 832 F.2d 649

Docket Number: 86-1413

Court Abbreviation: 1st Cir.